B-249371.2: Apr 30, 1993

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MILITARY PERSONNEL Pay Overpayments Error detection Debt collection Waiver Former member of the Army was overpaid accrued leave upon separation. The former member provided additional information which indicates he was clearly aware of the overpayment made to him. When an individual knows that a payment is erroneous. Collection of the payment is neither against equity or good conscience nor contrary to the interests of the United States. Our previous denial of waiver is affirmed. DECISION This action is in response to a request from Dennis R. 570.65 which resulted from an erroneous payment for accrued leave to which he was not entitled. Nix should have had a reasonable awareness of his leave balance and should have known that he was being overpaid.

MILITARY PERSONNEL Pay Overpayments Error detection Debt collection Waiver Former member of the Army was overpaid accrued leave upon separation, creating a debt of $4,670.65. When requesting reconsideration of the denial of his request for waiver of the debt, the former member provided additional information which indicates he was clearly aware of the overpayment made to him. When an individual knows that a payment is erroneous, collection of the payment is neither against equity or good conscience nor contrary to the interests of the United States, and our previous denial of waiver is affirmed.

DECISION This action is in response to a request from Dennis R. Nix for reconsideration of our decision Dennis R. Nix, B-249371, November 19, 1992. In Nix, Mr. Nix requested reconsideration of his request for waiver of his debt of $4,570.65 which resulted from an erroneous payment for accrued leave to which he was not entitled.

We held that Mr. Nix should have had a reasonable awareness of his leave balance and should have known that he was being overpaid, thus waiver was not appropriate. In addition, we noted that the payments which he received following the erroneous payment reflected the inaccurate leave balance for which he was overpaid. Thus, we found that he was not without "fault" in the matter and waiver was denied.

In his current submission, Mr. Nix has stated that he believes our decision was based on incomplete information and has provided copies of additional correspondence between himself and Defense Finance and Accounting Service, Indianapolis (DFAS), formerly the U.S. Army Finance and Accounting Center. He asks that we reconsider our decision based on this additional information.

The documents, a series of letters sent to DFAS by Mr. Nix, indicate that Mr. Nix had difficulty obtaining an accurate W-2 form during that period and demonstrate that Mr. Nix was aware of the overpayments made by DFAS and that he attempted to resolve the situation and requested an audit of his pay records. Mr. Nix states his belief that it was only because he pointed out the errors that DFAS discovered the overpayment and the debt owed.

We agree that the letters provided by Mr. Nix reflect his knowledge that he was being erroneously overpaid for leave days. We also agree hat Mr. Nix acted promptly to notify DFAS of the erroneous payments and did ask for an audit of his pay records. However, this does not provide us with the basis to reverse our denial of waiver.

We have long held that the waiver statute does not apply automatically to relieve the debts of all members who, through no fault of their own, have received erroneous payments from the government. Waiver action under 10 U.S.C. Sec. 2774 is a matter of grace or dispensation, and not a matter of right that arises solely by virtue of an erroneous payment being made by the government. If it were merely a matter of right, then virtually all erroneous payments made by the government to service members would be excused from repayment.

We have also consistently held that persons receiving money erroneously paid by a government agency or official acquire no right to the money. An individual who should have known or did in fact know that a payment was erroneous has a duty to set aside the overpayment for its eventual return to the government. Therefore, collection action of the erroneous payment is neither against equity and good conscience nor contrary to the interests of the United States. See, Commander Franklin D. Julian, USN, B-193367, Jan. 10, 1979, and Phillip W. McNany, B-198770, Nov. 13, 1980.

Thus, while the matter was not resolved for a protracted period, the fact remains that Mr. Nix was aware that he had been overpaid for his leave. In these circumstances we have no alternative but to deny his request for waiver of his debt.

Mar 13, 2018

Interoperability ClearinghouseWe dismiss the protest because the protester, a not-for-profit entity, is not an interested party to challenge this sole-source award to an Alaska Native Corporation under the Small Business Administration's (SBA) 8(a) program.